Senate Bill 33 Grants Protection to Emergency Room Providers . . . and Just About Everyone Else, Too

BY Elizabeth Hill

The North Carolina General Assembly recently passed a hotly debated bill that reformed medical malpractice liability in several ways. Although this legislation received much attention because it placed a cap on noneconomic damages in medical malpractice suits, another provision also drastically alters current medical malpractice law in North Carolina. The General Assembly gave emergency health care providers further protection from liability by raising the burden of persuasion from the normal “preponderance of the evidence” standard to the “clear and convincing” standard for plaintiffs with claims arising out of emergency treatment. The General Assembly seemingly intended only to grant this heightened liability protection to health care providers working in hospital emergency rooms. Drafters of the bill included limiting language tying the heightened protection directly to a patient’s location in a hospital emergency room in all earlier drafts of the bill. However, the final enacted version does not include language limiting the protection solely to emergency room providers.

This Recent Development posits that by omitting the limitation based on a patient’s location in a hospital emergency room, the General Assembly inadvertently or unwisely extended the heightened protection intended solely for emergency room health care providers to providers in a myriad of other contexts. In effect, the enacted language raises the evidentiary standard for plaintiffs bringing claims against any health care provider in any location, as long as the individual was treated for an “emergency medical condition” as that term is defined under the Emergency Medical Treatment and Active Labor Act (“EMTALA”). Specifically, this protection may now extend to treatment of emergencies in local doctors’ offices, in hospitals without emergency rooms, and even in situations occurring completely outside of a treatment facility where a health care provider intervenes to render emergency aid. Further, because the new statute defers to EMTALA’s definition of “emergency medical condition,” which includes active labor cases where a pregnant woman is close to the time of her delivery, the General Assembly has changed the field of obstetrics malpractice by raising the burden of persuasion for many plaintiffs with claims arising out of normal childbirth.

This Recent Development urges the General Assembly to amend the statute’s language so it provides protection solely to emergency room health care providers treating emergency medical conditions. To do so, the General Assembly should reincorporate the explicit limitation, found in versions four and five of the bill, that the protection applies only to claims resulting from the “furnishing or the failure to furnish professional services in a hospital emergency room.” Without this limitation, the legislation places an unwarranted evidentiary burden on plaintiffs seeking recovery for injuries incurred through the negligence of heath care providers outside of emergency rooms


DOWNLOAD PDF | 91 N.C. L. Rev.720 (2013)